The Johnson Amendment

John Garvey

3/01/17

At the National Prayer Breakfast last month, President Donald
Trump promised to "totally destroy" the Johnson Amendment "and
allow our representatives of faith to speak freely and without fear of
retribution." I must confess that, on the list of things I hope the new
administration will accomplish this year, this one is fairly far down.

The Johnson Amendment is named for President Lyndon Johnson, who
inserted the provision as a floor amendment to the 1954 tax code. Johnson was
then a freshman senator, engaged in an unpleasant primary election fight with a
young conservative Catholic state representative from Beeville, Texas.

This was at the peak of Joe McCarthy's anti-communist witch hunt,
and several right-wing nonprofits had supported Johnson's opponent. Johnson
worried that their charges of liberalism would hurt him.

So he proposed a prohibition on political activities by
nonprofits: Organizations exempt from tax under section 501(c)(3) should not
"participate in, or intervene in ... any political campaign." It
applies to all kinds of nonprofits (my university, the Open Society
Foundation), not just churches. What it means for churches, though, is that
they can't make campaign contributions, and they can't endorse (or oppose)
candidates from the pulpit.

They can still take positions on issues such as abortion, family
life, immigration and health care. The Catholic Church does this all the time.
And the U.S. Conference of Catholic Bishops Office of General Counsel offers
elaborate guidelines for parishes and dioceses so they can observe the distinction
between permitted and prohibited political interventions.

Though the Johnson Amendment was uncontroversial in 1954, there
have been a lot of complaints about it lately. The Pew Research Center reported
last year that 1 in 4 black Protestants heard their clergy endorse Hillary
Clinton during the election campaign.

The Alliance Defending Freedom has worked for almost a decade to
provoke a legal challenge to the rule. The Alliance Defending Freedom's Pulpit
Freedom Initiative asks pastors to preach about the moral qualifications of
candidates seeking office.

The day before the National Prayer Breakfast, Sen. James Lankford,
R-Okla., and Rep. Jody Hice, R-Ga., introduced a bill (the Free Speech Fairness
Act) to amend the ban on endorsements, though not the one on contributions.

I'm not sure this is a good idea, though my reasons are probably
different from the ones the secular left will advance. The Constitution does
not require the Johnson Amendment. Separationists may say that giving churches
a tax exemption and letting them participate in political campaigns is a
forbidden mixture of church and state.

But repealing the Johnson Amendment would also free the Open
Society Foundation to do the same thing. When the government is giving out
subsidies, it should be allowed to treat churches the way it treats other
secular institutions.

I might go even further. The idea that the government confers a
benefit on churches when it declines to tax them (the "tax benefit"
argument) rubs me the wrong way. It assumes that everything we have really
belongs to the government (like whales and sturgeon belong to the queen), and
anything we're allowed to keep is a matter of grace. This kind of omnivorous
statism is what got Trump elected.

But looking at the matter from the church's point of view (rather
than the government's), I see a good deal of wisdom in the principle the
Johnson Amendment expresses.

The Catholic Church does not align very well with either
Republicans or Democrats, as events the week before the National Prayer
Breakfast reminded us. Vice President Mike Pence spoke at the annual March for
Life; that same day President Trump issued an order banning travel from seven
Muslim-majority countries.

Political endorsements really aren't the mission of the church —
not of our church, anyway. When it comes to voting, better she remind us at all
times what the Gospel requires and leave it to us to figure out how to comply.